Lord Grimstone of Boscobel: My Lords, I am perpetually grateful to the noble Lord, Lord Stevenson of Balmacara, for his contribution to the discussion of this Bill. Turning to Amendment 36A, in the noble Lord’s name, I am sure that noble Lords will agree that for the Government to grow and strengthen the UK’s export capability, we need a clear understanding of the UK’s exporters. This would ensure that the work we do is targeted and tailored to the businesses where it will deliver the maximum benefit.
Clause 7 sets out the powers needed for the Government to collect data to establish the number and identity of UK businesses exporting goods and services, particularly the smaller businesses and sole traders that may not be readily identifiable from existing data, and where the Government can provide a helping hand, something of course which the Government enjoy doing, so that they can reach new markets.
Amendment 36A to remove Clause 7(4) would restrict the ability of the Government to fully implement the new voluntary—I stress voluntary—exporter question. A similar amendment was discussed in Committee, when noble Lords raised concerns that secondary legislation should not have the power to change primary legislation. However, to include new questions within the relevant tax return—it is that very specified matter—an affirmative SI will be required to amend the relevant legislation. That is the purpose of Clause 7(4), which provides the necessary powers to do so. I repeat that Clause 7(4) is necessary to ensure that the relevant exporter questions are included, as intended on tax return forms. The practical implementation of this will be a tick box on tax returns which the person filling in the tax return can tick if he wishes to identify himself as an exporter; it is entirely voluntary. On that basis, I ask for the amendment to be withdrawn.
Coming to the government amendments in this group, we debated some of them during the sixth day in Committee on 15 October, when noble Lords, particularly the noble Lord, Lord Grantchester, felt that they could not agree to the changes at that stage. I hope that the confirmation I provided in my letter of 19 October, the debate that we had before Christmas during the passage of the Trade (Disclosure of Information) Act, and my response today will provide reassurance to your Lordships.
This group consists of government amendments that are technical in nature but are important to explain, and I will do my best to do so. On Amendment 37, it has always been our intention that the devolved Administrations should be able to access HMRC information to facilitate the exercise of their trade functions through the powers in this Bill. In direct answer to the noble Lord, Lord Purvis of Tweed, the implementation of trade agreements may of course fall within the delegated powers of the devolved Administrations, but that is of course different from the trade policy. So implementation of a policy may fall within a devolved Administration’s powers whereas the trade policy itself, as a reserved matter, does not.
In discussions with devolved Administration colleagues, they have asked that their ability to receive information is made more explicit in the Bill. Amendment 37 provides that clarity. Amendment 42 is simply a consequence of Amendment 37 and, to aid interpretation, explains what is meant by the term “devolved authority” for the purposes of the Bill.
In Committee my noble friend Lady Neville-Rolfe expressed concern, and she has repeated some of these points today, that the devolved Administrations would be able to access HMRC data under Clause 8, that they may have different trade objectives, and in particular that they may take a different view on the confidentiality of HMRC data. On the first point, I should stress that the clause allows the sharing of data for devolved functions relating to trade only, such as export promotion, so information could not be used in a way that was incompatible with functions falling under the international trade reservations in the devolution statutes.
On the second issue raised by my noble friend, I stress that the devolved Administrations are responsible Governments and take their legal obligations very seriously. The data protection provisions set out in the Bill apply equally to the devolved Administrations, and any onward disclosure could only occur in compliance with that, as well as requiring the consent of HMRC. I confirm to my noble friend Lady Neville-Rolfe that I am sure that these provisions will be used sensibly.
We have worked closely with the devolved Administrations to ensure that the data-sharing gateways in the Bill can also assist them with their devolved functions. In this spirit, the Government have made two further commitments to the devolved Administrations in relation to data sharing in Clause 9 of the Bill in Committee, and in both Houses, during the passage of the equivalent clauses in the Trade (Disclosure of Information) Act, and I am happy to repeat those assurances today.
First, the data shared under Clause 9 will be used by the border operations centre and the Cabinet Office to develop strategic insights. The Cabinet Office is committed to sharing strategic analysis related to the flow of trade where it will support the more effective management of flow through those borders. Secondly, the UK Government commit to consulting the devolved Administrations before any devolved authorities are added to, or removed from, the list of specified authorities that can share data under Clause 9.
In Committee and in considering the Trade (Disclosure of Information) Act—this has also been mentioned today—the noble Lord, Lord Purvis, correctly noted that the list of specified authorities does not currently include devolved bodies. As I noted in my letter following that debate, the public bodies included in the Bill were identified as key sources of information in relation to the immediate requirements of the border operations centre for the end of the transition period, and particularly to monitor flow at the locations where there is the highest risk of disruption to the border. Access to the data held by these authorities is critical for minimising and managing disruption.
The key point is that Clause 9(9) permits a Minister of the Crown to add other public authorities, which include devolved authorities, to the list. Authorities added to the list subsequently are in no way second-class citizens. Once they have been added to the list, they are completely pari passu with those listed in the Bill. It should be noted that, as I mentioned earlier, we are making a commitment to consult the devolved Administrations before any devolved authorities are added to this list.
Government Amendments 38 and 39 are, like Amendment 40, intended to correct a minor drafting error. My noble friend Lord Lansley raised a number of important points in relation to the equivalent clauses when we debated the Trade (Disclosure of Information) Act. Following that debate I provided a more detailed response, which noble Lords have referred to today, outlining the effect of these amendments. In short, their effect is the same in both Clauses 8 and 9—to ensure that the additional words in parentheses apply to both paragraphs in the relevant subsections rather than just the first.
I can confirm to my noble friend Lord Lansley that data protection legislation and investigatory powers legislation authorise disclosure in certain circumstances, including when in exercise of a statutory function. The additional wording makes it explicit that the statutory powers in Clauses 8 and 9 are to be taken into account when determining whether disclosure would contravene data protection legislation or would be prohibited under investigatory powers legislation. In direct answer to my noble friend’s question, I can assure him that the powers will be used only when necessary and proportionate.
Using his forensic skills which we in this House admire so much, my noble friend also correctly noted that the specific wording used to achieve the same effect in the Trade (Disclosure of Information) Act differs from that included in government Amendments 38 and 39. I can reassure the House that this is a difference in drafting but not in effect. Parliamentary counsel—a  profession for which I have great respect—is rightly jealous of its professional independence, and occasionally we find that a parliamentary draftsman will prefer the use of one word to another. I am sure your Lordships would not want to constrain their intellectual ability to do so. I can confirm that the intent of the words is the same. I admire the attention to detail shown by the noble Lord, Lord Purvis, in this matter. If his career had taken a different turn, no doubt he would have made a great parliamentary counsel.
Amendment 40 corrects a drafting omission relating to Clause 10(4)(b)(i). This, I think, will answer the question asked by the noble Lord, Lord Purvis, about why there is a difference—between 12 months and six months—between England and Scotland. As I noted in Committee, Clause 10 as currently drafted provides that a person guilty of an offence under the clause is liable on summary conviction in England and Wales to imprisonment for a term not exceeding 12 months, to a fine, or to both. However, until the relevant provisions of the Sentencing Act are commenced, magistrates can only impose a sentence of up to six months’ imprisonment for a single offence in England and Wales. When the relevant sections of the Sentencing Act are commenced, this disparity will disappear.
In other legislation that provides for a maximum penalty of 12 months’ imprisonment on summary conviction, a provision concerning magistrates’ current sentencing powers is included, to provide that that reference to 12 months is to be read as reference to six months until relevant provisions of the Sentencing Act are commenced. That may seem a bit like Alice in Wonderland to noble Lords, but I assure the House that it represents the correct position. This amendment adds a similar provision to this Bill in relation to Clause 10(4)(b)(i). I should also make your Lordships aware that as a consequence of the European Union (Future Relationship) Act 2020, the Government will need to make future minor and technical amendments to this clause at Third Reading.
The House has previously noted the importance of the ongoing work of government to manage our new trading relationship with the European Union and the rest of the world. I hope that my letter and my remarks have addressed any remaining concerns.
To be clear, the minor and technical amendments that we will bring forward at Third Reading relate entirely to the renumbering of certain paragraphs and do not affect the intent or content of the legislation at all.
I hope that I have addressed any remaining concerns held by noble Lords relating to the clauses being debated. On that basis, I will move government Amendments 37 to 40 and Amendment 42 when the time comes.